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Thursday, October 13, 2016

‘Hadi’s Islamic law’ will usurp powers of Malay Rulers and state legislatures, says former law minister

Parliament starts its new session this Monday and the motion on PAS President Datuk Seri Abdul Hadi Awang’s Private Member’s Bill to amend the Shariah Court (Criminal Jurisdiction) Act 1965 — or Act 355 – may be debated as early as Tuesday.

This motion will be moved by a minister from the Barisan Nasional (BN) government, as is required under the Standing Orders. What will that minister say?
From media reports, it would appear that Hadi’s Private Bill is about allowing the Shariah Courts to impose heavier punishments, which in turn means repealing certain provisions under the Act.

Hadi wants to remove the present limitations on the courts’ sentencing powers. He thinks that if the Shariah Courts can impose longer jail sentences, stoning, amputation and whipping, then they will essentially be upgraded and respect for Islam will be maintained.

Members of Parliament, regardless of their faith, must not get too emotional like the Mufti of Perak Harussani Zakaria. They must maintain the integrity of Parliament and they must follow the law of the land strictly.

They are lawmakers first and last. That means they have to ask the right questions and see if the Minister can provide satisfactory answers.

Shariah Courts are set up and regulated by state laws, and their powers and the offences they punish are defined by the Federal Constitution.

Parliament is not supreme in our Country, the Constitution is. MPs must see if the powers that Hadi is asking for is permitted by the Constitution, and whether justice will be served by amending Act 355.

Federal lawmakers must also ask Hadi if the Malay Rulers, who are the custodians of Islam in the states, have agreed to his proposals.

MPs must not let Hadi and his friends in PAS usurp the powers of the Malay Rulers and the state legislatures. He cannot simply change part of a federal law and, in one stroke, automatically change the core principles and fundamental structure of our criminal laws.

Lawmakers must remember that there is a requirement under the Constitution that all Malaysians are entitled to equal treatment under the law. If I steal a bicycle, then the Constitution says that the law applicable to me must be the same law that applies to Murthi or Ah Chong.

Hadi is trying to change that, but he does not dare to try and change the Constitution itself, in case he loses seats in Selangor and Perak.

Let’s say Hadi succeeds and the Shariah Courts sentence someone to stoning. How will the stoning be done, and under what regulation? What if the accused person dies as a result of this punishment?

The police would not be able to get involved because they can only act in accordance with the Criminal Procedure Code and the powers under the Police Act. Hadi’s Bill does not address how these Federal laws will operate with his new law.

Now let’s say that the Shariah Courts start amputating legs and hands. Who will carry out these punishments? Are doctors permitted to do so, and if so, under what law?

Will the amputation be carried out in prison, and if so, has the Prisons Act been amended to allow for it?

As for whipping, Hadi had said that Islamic whipping is different. That is not good enough — he must explain how it’s different, and under what law it will be carried out because the Criminal
Procedure Code has totally different rules regarding whipping.

Lawmakers must not treat Hadi’s attempt to alter our country’s justice system lightly. They should view it with concern, even alarm.

For the Muslims who are MPs, your first duty is to see that justice will be done. You cannot simply jump onto Hadi’s bandwagon because he has pasted an Islamic label all over it.

Ask him how the whole process will be carried out, to the minutest detail.

Ask him how justice can be served if the Shariah Court only has one layer of appeal. It has no Federal Court of Appeal, no Court of Appeal equivalent. It has no law reports, no standard law of evidence that is applicable to all states. It does not even follow precedents.

Hadi and his supporters will say that Islam does not need all these legal processes. To them, as long as someone is punished, then justice is served.

MPs must know that the heavier the punishment, the more safeguards are needed in the system so that we do not convict the wrong person, or punish people who have committed minor offences with excessive jail sentences. The whole system must be looked at carefully.

Some politicians will talk about Islamic law as a campaign issue, but I urge MPs to go beyond that.

They must be responsible for the welfare of the entire population, Muslims and non-Muslims alike.

The minister moving the motion is from the BN, which has ruled the country and preserved the present system since independence. Is she willing to abandon this entire system of justice just because it’s convenient to be Hadi’s allies in the next General Election?

Don’t kid the people that Hadi’s Bill is just about upgrading the Shariah Courts. If the minister sincerely wants to upgrade the Shariah Courts and wants Islamic justice to prevail, start by codifying all the state laws into a uniform, national Islamic law.

Build lockups for the Shariah Courts and not just get help from the police by using their lockups.

Get a proper appeal system in place so that the decisions of the lower courts can be revisited by those who have more knowledge and experience. Have a Federal Shariah Court established, where laws are argued and articulated so that shariah lawyers can get adequate guidance.

There are 100 other things we can do to improve and upgrade the shariah system.

There is a time and place for cheap politics and posturing, but Hadi’s Bill is not such an occasion.

This is a serious matter.

Lawmakers must reject the motion to introduce the Bill without the slightest doubt or hesitation. We should all be watching to see what happens next.